Ramendra Mohan Datta, J.
1. This appeal arises from the judgment and order passed by S. Mukharji,, J. dated September 14, 1977 in which the learned Judge has made no order on the stay application under Section 10 of the Civil P. C.
2. The prior suit was instituted in the Court of the Subordinate Judge at Machili-patnam in Andhra Pradesh by Challapalli Sugars Ltd. against the respondent above named, inter alia, for the payment of the balance price of sugar sold. The goods were delivered to the carriers. While in the custody of the carriers the goods were destroyed by fire which broke out on April 16, 1974.
3. The Calcutta suit was filed by Swadeshi Sugar Supply Pvt. Ltd. the defendant in the Andhra Suit at a later point of time, inter alia, for refund of the price paid to theplaintiff in the Andhra Suit on account of the very same goods under the same contract. In the Calcutta suit it is contended that the said goods had not been delivered although the same were paid for. It is the case of the plaintiff in the Calcutta Suit that the said goods should have been delivered even prior to the said April 16, 1974 being the date when the said goods were destroyed by fire. One of the questions to be determined in both the suits is whether the property in the said goods had or had not passed to the plaintiff in the Calcutta Suit.
4. The plaintiff in the Calcutta Suit filed its written statement in the Andhra Suit. It appears from the said written statement that the defendant Swadeshi Sugar Supply Pvt. Ltd. therein admitted that the transactions arose out of the same contract in respect whereof the cause of action of the plaintiff in the Andhra Suit was on account of price of goods sold and the defendant's cause of action, inter alia, was for refund of the amount paid in advance. In para 10 (n) the defendant in its said written statement in the Andhra Suit stated, inter alia, that the defendant had made a total payment of Rupees 18,20,937.50 p. and the plaintiff had delivered goods to the defendant of the total value of Rs. 15,46,998.75 p. being the value of 4176 bags of sugar at the agreed rate including the excise duty. Accordingly, the balance sum of Rs. 2,73,938.75 p. became due and payable by the plaintiff to the defendant. It was stated therein that the 'defendant reserved its right to realise the said balance sum besides the interest thereof and the loss of the defendant as suffered by reason of the failure of the plaintiff in not delivering the goods and/or forwarding the Lorry Receipts (L/Rs) direct to the plaintiff by a separate suit'.
5. Mr. D. Ghosh appearing on behalf of the respondent Swadeshi Sugar Pvt. Ltd. contends that by reason of such reservation the said defendant has filed the present suit in Calcutta wherein a further question of damages on account of demurrage has been raised which such further question has not been raised by way of defence in the said Andhra Suit. Mr. Ghosh has referred to the plaint in the Calcutta Suit and particularly paras 30, 31 and 32 thereof whereby the claim of Rs. 53,844.70 p. has been claimed by the plaintiff herein as damages suffered on account of demurrage which it had to pay to Savani Transports Pvt. Ltd.
6. Reading the said averments in paragraph 10 (n) of the said written statement itwould appear that the defendant therein specifically reserved its right to institute a separate suit wherein the entire defence was to be set out and the entire relief would also be claimed therein on behalf of the defendant. It is not correct to say that only the question of demurrage had been left open.
7. In the matter of staying the suit under Section 10 the main consideration for the Court is whether or not the matter in issue in the subsequent suit which is sought to be stayed is directly and substantially in issue in the previously instituted suit. Admittedly the parties in both the suits are the same and both the Courts have unlimited pecuniary jurisdiction so as to try and entertain the two suits. The point involved is what is the subject matter in controversy between the parties in the two suits. The Division Bench in Bepin Behari Mazumdar v. Jogendra Chandra Bose, (1916) 24 Cal LJ 514 : (AIR 1917 Cal 248), was of the view that the expression 'matter in issue' in Section 10 has reference to the entire subject in controversy between the parties. It was observed that the object of Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.
8. In the case of Shorab Merwanji Modi v. Mansata Film Distributors : AIR1957Cal727 , Chakravartti, C. J. sitting with Sarkar, J. (as he then was) expressed the view that Section 10 speaks of 'matter directly and substantially in issue' and not 'cause of action'. In my opinion if that distinction is borne in mind then a lot of confusion can be avoided in appreciating the scope and intent of Section 10. The Division Bench in Shorab Modi's case (supra) also considered the case under Section 10 where there was an additional party in the subsequent suit. It was observed that such an additional party by itself would not make Section 10 inapplicable. The expression 'same parties' would also mean the parties as between whom the matter substantially in issue has arisen and has to be decided. It was observed there that complete identity of either the subject matter or the parties was not required.
9. Our attention has been drawn to the case of Arun General Industries Ltd. v. Rishabh ., : AIR1972Cal128 , where Division Bench of this Court by following the principles laid down in the Bombay decision in the case Jai Hind Iron Mart v. Tulsiram Bhagwan Das, : AIR1953Bom117 and the earlier Calcutta decision in Shorab Modi's case (supra) held the viewthat even though the Jabbalpur Suit therein was based on a contract for recovery of the balance of consideration and the defendant in that suit had raised as their defence in that suit the plea of fraud and false representation and in the Calcutta Suit the plaintiff's claim was based on fraudulent misrepresentation, false assurance and suppression of material fact, still the field of controversy between the parties to the two suits therein were substantially the same although they were not completely identical.
10. In the case of Shaw Wallace & Co. Ltd. v. Bholanath Madanlal Sherawala : AIR1975Cal411 , another bench of this Court considered a case under Section 10 and followed and applied the principles laid down in the above earlier Bench decision of this Court. The case was, however, decided on the facts involved therein. In the case of Brijlal and Co. v. MadJiya Pradesh Electricity Board : AIR1975Cal69 , a Single Bench of this Court refused to siay the later suit on the ground that the earlier suit could not determine the entire controversy between the parlies and the later suit was far more comprehensive. With respect, that is not a relevant factor governing the provision of Section 10, C. P. C. and the law has not been correctly laid down therein. In the case of Shiva Prasad Agarwal v. Semiconductors Ltd. AIR1976 Cal 358, S. Mukharji, J. considered a case in which the question in the previously instituted suit was whether there was a proper performance of the contract by the defendant-respondent to the application for stay of suit and if not to what damages the plaintiff-applicant was entitled. The question involved in the subsequent suit was whe-ther there was wrongful repudiation of contract by the defendant-appellant and, if so, whether the plaintiff-respondent was entitled to any damages. It was held therein that those two questions were separate questions and the disposal of one issue would not resolve the need for adjudication of the other. Accordingly, the matters in issue directly and substantially in both the suits were not the same. The learned Judge, accordingly, refused the application for stay. The learned Judge took the view that the two questions were separate questions and the disposal of one issue or adjudication of one issue would not resolve the need for adjudication of the other. In my view that is not the correct approach. That was not the principle which was enunciated in the earlier Division Bench decisions of this Court. In my view the learned Judge was not right in Iris approach.
11. In the instant case as observed herein-above the subject matter in controversy is the same. Such controversy arises from out of the same contract and from the same transactions. Just as there is the question of claiming price of goods in the one suit arising out of the same contract so there is also the question relating to refund on account of the excess amount paid in advance, Similarly, out of the same contractual relationship arose the controversy relating to demurrage and the question as to whether the property in the goods had passed or not. All these matters are in controversy arising out of the same transactions and the same contract. But the reliefs claimed by the parties are based on different causes of action which arose within the framework of the same subject matter in controversy. As observed in the case of Arun General Indus-tries Ltd. v. Rishabh . : AIR1972Cal128 (supra).
'The matter for determination in the cage of an application for stay under Section 10 of the Code is not what the basis of the claim in the two suits is but what is the matter in issue in the two suits.' There it was also observed that,
'if a claim based on a contract in one suit, is sought to be avoided and repelled on the ground of fraudulent misrepresentation and a subsequent suit is filed claiming damages on the basis of fraudulent misrepresentation with regard to the same contract the issues nevertheless in the two suits would be substantially the same, even though the basis of the claim in the two suits are altogether different.'
With respect, I fully agree with the aforesaid observation. When the subject matter in controversy is the same then it is immaterial that a further question, such as, demurrage has been raised in the subsequent suit. That further question too is verily involved within the scope of the subject matter in controversy. The fact that the plaintiff in the Calcutta Suit has specifically reserved its right to file a suit for the reliefs which it is entitled to claim in the Andhra Suit and which it chooses not to claim therein, cannot be a consideration for refusing to grant stay of the Calcutta Suit. If the plaintiff in the Calcutta Suit would choose not to agitate the said further question relating to demurrage in the Andhra Suit then all that might ultimately happen is that if stay is granted of the Calcutta Suit then such further question as to demurrage could be agitated after the Andhra Suit will be disposed of, subjecthowever to the plea of res judicata or constructive res judicata that might arise at such stage of the proceeding. If the Calcutta Sail is stayed I do not think how the plain-tiff herein would be prejudiced if it would ask for leave to amend its written statement in the Andhra Suit to incorporate the said further question or claim.
12. In that view of the matter we do not think that the learned Judge rightly considered the matter when he held that these questions were separate from and independent of the question whether the property in the goods had in fact passed on to the respondent.
13. The result therefore is that the appeal must be and is hereby allowed. The order of the Court below is set aside and there will be an order staying the trial of the Calcutta Suit. The appellant would be entitled to the costs of the application of the Court below and also the costs of this appeal.
C.K. Banerji, J.
14. I agree.